COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Clements and Senior Judge Coleman
Argued at Richmond, Virginia
S. P. TERRY COMPANY, INC. AND
MONTGOMERY PEERLESS INSURANCE COMPANY
OPINION BY
v. Record No. 2470-01-2 JUDGE JEAN HARRISON CLEMENTS
AUGUST 13, 2002
JORGE RUBINOS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Patricia C. Arrighi (Taylor & Walker, P.C.,
on brief), for appellants.
Craig B. Davis (Geoffrey R. McDonald &
Associates, on brief), for appellee.
S. P. Terry Company, Inc. and Montgomery Peerless Insurance
Company (collectively, employer) appeal an award by the Workers'
Compensation Commission (commission) of temporary total
disability benefits, temporary partial disability benefits, and
medical benefits to Jorge Rubinos (claimant). Employer contends
the commission erred in ruling that the aggravation of
claimant's compensable injury to his hand was compensable
because employer gave claimant work that required him to exceed
his work restrictions, even though claimant willfully violated
his work restrictions by performing that work. Finding no error
by the commission, we affirm the award.
I. BACKGROUND
In reviewing the commission's decision, we view the evidence
in the light most favorable to claimant, the party prevailing
before the commission. See Allen & Rocks, Inc. v. Briggs, 28
Va. App. 662, 672, 508 S.E.2d 335, 340 (1998). So viewed, the
evidence established that claimant, who worked for employer as a
painter, suffered a compensable injury to his left thumb on June
9, 2000, while lifting a piece of scaffolding. He went to Patient
First on June 12, 2000, where he was examined by Dr. G. Clifford
Walton. Dr. Walton diagnosed a finger sprain. He limited
claimant to light-duty work with no lifting with the left hand.
When claimant returned for a follow-up examination on June 19,
2000, Dr. Walton took him out of work and referred him to
Dr. Keith A. Glowacki, a hand specialist.
Dr. Glowacki examined claimant on June 20, 2000. He
diagnosed a left thumb radial collateral ligament tear and placed
claimant's left hand in a cast. Dr. Glowacki noted in his report
that claimant would "have no use of that hand at work" for three
to four weeks. He further estimated in a patient work status
report dated June 20, 2000, that claimant would not have full use
of his left hand for six weeks and indicated in the "work
limitations" portion of that report that claimant was to have "no
use of injured hand." Dr. Glowacki emphasized in the "comments"
section of that report that claimant was to have "[a]bsolutely no
use whatsoever of [left] hand!"
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Following the examination and treatment by Dr. Glowacki,
claimant returned to employer's office and gave employer's
secretary a note from Dr. Glowacki regarding claimant's work
restrictions. The secretary read the note and informed claimant
she would speak to Steven Terry, employer's president and
co-owner. Claimant went home to await employer's call regarding
light-duty work.
More than a week later, claimant received a call from
employer notifying him to return to work. He reported to
employer's office on Friday, telling Terry the doctor had said he
could work using only his right hand. Terry informed him there
was no work for him that day and told him to return on Monday. On
Monday, Terry sent claimant to an airport work site, where
claimant was given the job of painting baseboards on the outside
of a building.
Acknowledging he had received notification from Dr. Glowacki
of claimant's work restrictions, Terry testified he told
claimant's supervisor to let claimant do only low work that would
not require him to climb ladders. Claimant testified his first
day at the airport site was the only day employer gave him work
that was within Dr. Glowacki's work restrictions. Even then,
claimant added, the nature of the airport job required him to
repeatedly lift a gallon of paint with his left hand. Claimant's
assignment at the airport job lasted two days.
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Terry then sent claimant to a work site at an apartment
complex. Terry testified he again told claimant's supervisor to
let claimant do only low work. Initially, claimant was given the
job of painting several seven-foot-tall windows. When the windows
were completed, claimant's supervisor had him paint a deck, which
required him to lift and climb a sixteen-foot ladder. Claimant
testified he was unable to lift and climb the ladder and paint the
deck without using his left hand. Claimant further stated that,
when he climbed the ladder, he had to temporarily remove a brace
that had been prescribed by Dr. Glowacki for his left hand,
because he was afraid he would fall off the ladder if he did not.
Claimant also testified his supervisor saw him lift and climb the
ladder using his left hand and remove his brace, but the
supervisor did not tell claimant not to use his left hand.
According to claimant, his supervisor told him he had to lift the
ladder. Claimant did not ask anyone to help him. He complained
to a co-worker that the work he was being given violated the work
restrictions imposed by his doctor.
On July 7, 2000, claimant returned to Dr. Walton for a
follow-up examination. He told the doctor he had been returned to
regular duty at work. Dr. Walton referred him to Dr. Glowacki.
Claimant saw Dr. Glowacki on July 14, 2000. In his report of
that visit, Dr. Glowacki wrote:
[Claimant] is here just over 3 weeks out from
his left thumb radial collateral ligament
injury at the MP joint. He's stating that
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his employer, although I gave him a note that
said absolutely no use of his hand, is still
making him lift ladders and do things that
obviously require two hands. I told him
there is only so much I can do and wrote a
note that says that at this point [claimant]
would be endangering himself and others
further if he continued to use both hands. I
filled out another note that says he has no
use of that left hand until further notice
and I think his result will be compromised if
he uses that hand.
When claimant returned for a follow-up visit on August 18,
2000, Dr. Glowacki reported as follows:
Despite conservative treatment, [claimant] is
failing with continued use of his hand at
work given the option of only two-handed type
of work. It is impossible without use of
your thumb to do heavy lifting of a
ladder. . . . Presently he is a danger to
himself and his coworkers if he continues to
lift ladders, climb ladders and do heavier
type activity. Unfortunately I believe all
this is moot as he is failing conservative
treatment and likely is made worse by using
his hand. I told him that we'll have to get
an MRI to evaluate this area and probably
have to perform surgery at this point. . . .
We will see him back after the MRI regarding
the surgical treatment.
Dr. Glowacki further noted in a patient work status report
dated August 18, 2000, that claimant's injury was work related and
that he did not know when claimant might return to work with full
use of both hands. Dr. Glowacki also indicated in the "work
limitations" portion of that report that claimant was to have "no
use of injured hand" and added in the "comments" section that
surgery would probably be necessary "due to [claimant's] constant
using of hand."
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Claimant testified he never had the MRI prescribed by
Dr. Glowacki because employer did not authorize payment for it.
He further testified that, each time he returned to work after
seeing Dr. Glowacki, he gave the paperwork he had received from
Dr. Glowacki regarding his work restrictions to employer's
secretary. Claimant also testified he never told anyone at work
that his work restrictions had been rescinded. He also stated
there was a supervisor present every time he lifted or climbed a
ladder at work and added he did not complain to Terry or his
supervisors about his job assignments "because they knew" the work
he was being given exceeded his work restrictions. He further
stated that, even though he knew he was not supposed to use his
left hand, he did so because he had a family and "[t]hat [was] the
work that [employer] gave [him]."
Claimant continued working for employer through September 21,
2000, doing such work as painting offices with eight-foot-high
ceilings, the outside of condominiums, the outside of a shed, the
outside of houses, and the outside of a church. According to
claimant, his work included carrying forty-foot ladders and
climbing ladders to the second floor of houses. Claimant left
employer in September to work for another painting company because
he "did not feel good" and employer did not give him his normal
hours due to his hurt hand. In his new job, as a supervisor, he
did not lift or climb ladders or otherwise use his left hand when
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painting. He left that job three months later because his thumb
and the cold weather were "bothering [him] too much."
Terry testified that he received all of Dr. Glowacki's notes
regarding claimant's work restrictions and that he never received
one releasing claimant from his work restrictions. Terry further
testified that claimant never told him he had been taken off work
restrictions. Terry stated that he instructed his foremen to
provide claimant with light-duty work that did not require the use
of ladders. He also stated that, since he was unable to be at all
the work sites, he depended on his foremen to carry out his
orders, but acknowledged he did not know whether they did or not.
He did not know, he admitted, whether claimant was ever required
to lift or climb ladders or whether claimant ever did so.
Terry testified that, when he visited the work sites, he did
not see claimant carrying any ladders but did see claimant lifting
buckets with his left hand and working without his brace on after
mid-August. Terry stated claimant never complained to him that he
was having problems with his left hand or that he could not do the
jobs assigned to him. In fact, he added, whenever he asked
claimant how his hand was, claimant always replied his hand was
fine and would move it around to show him. Terry testified he ran
out of light-duty work on September 5, 2000, and told claimant he
would have to do full-duty work or be let go. According to Terry,
claimant said his hand was fine.
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Claimant filed a claim for benefits dated September 21, 2000,
seeking an award of medical benefits, temporary total disability
benefits for the period June 17, 2000, through June 28, 2000, and
temporary partial disability benefits for the period June 29,
2000, through September 21, 2000.
Following an evidentiary hearing held on January 18, 2001,
the deputy commissioner awarded claimant temporary total
disability benefits from June 17, 2000, through June 28, 2000,
temporary partial disability benefits from June 29, 2000, through
August 7, 2000, and medical benefits. In reaching that decision,
the deputy commissioner found claimant had willfully violated his
doctor's work restrictions and that such violation was the cause
of the aggravation of his compensable injury and the resulting
disability after August 7, 2000. The deputy commissioner reasoned
that, although employer provided work to claimant that exceeded
his work restrictions, the provision of unsuitable work was not,
"by itself, a sufficient reason to absolve the claimant of his
knowing violation of the clear medical restrictions." Thus, the
deputy commissioner concluded, claimant was not entitled to
temporary partial disability benefits beyond August 7, 2000.
On review, the full commission amended the deputy
commissioner's opinion by extending the temporary partial
disability benefits to which claimant was entitled through
September 21, 2000. The commission reasoned that, because
employer required claimant to work beyond his work restrictions,
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it should have reasonably anticipated that such work would result
in an aggravation to claimant's compensable injury. Accordingly,
the commission concluded, employer was responsible for the full
period of disability benefits sought by claimant.
This appeal by employer followed.
II. ANALYSIS
Employer contends, on appeal, that claimant is not entitled
to disability benefits beyond August 7, 2000, because he
intentionally violated his physician's work restrictions. We
disagree.
To prevail on his claim, claimant had to prove by a
preponderance of the evidence that the disability for which he
sought compensation was causally related to his June 9, 2000
compensable injury. See King's Market v. Porter, 227 Va. 478,
483, 317 S.E.2d 146, 148 (1984); Rosello v. K-Mart Corp., 15 Va.
App. 333, 335, 423 S.E.2d 214, 216 (1992). The commission's
determination of causation is a finding of fact. American
Filtrona Co. v. Hanford, 16 Va. App. 159, 165, 428 S.E.2d 511,
515 (1993). "If there is evidence, or reasonable inferences can
be drawn from the evidence, to support the commission's findings,
they will not be disturbed on review, even though there is
evidence in the record to support a contrary finding." Morris v.
Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348
S.E.2d 876, 877 (1986).
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It is well settled in Virginia that an employee is entitled
to receive compensation for the subsequent aggravation of a
compensable injury if that aggravation is directly connected to
the employee's original compensable injury by a chain of
causation uninterrupted by "'an independent intervening cause
attributable to [the employee's] own intentional conduct.'"
Leadbetter, Inc. v. Penkalski, 21 Va. App. 427, 432, 464 S.E.2d
554, 556 (1995) (quoting 1 Arthur Larson, The Law of Workmen's
Compensation § 13.00 (1994)). On the record of this case, we
conclude, as did the commission, that claimant's performance of
work that required him to exceed his work restrictions did not
constitute an "independent" intervening cause. Employer knew
the work it was giving claimant required him to exceed his work
restrictions, and employer should have reasonably known that
such work would predictably result in the aggravation of
claimant's original compensable injury. Accordingly, claimant's
conduct did not break the chain of causation directly connecting
his compensable injury and the continuing aggravation of that
injury.
The evidence presented in this case supports the
commission's determination. After claimant was off work for
more than a week following Dr. Glowacki's initial examination,
employer told him to return to work. Terry testified that,
throughout the period in question, he was aware of claimant's
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work restrictions and that neither Dr. Glowacki nor claimant
ever notified him that such restrictions had ended.
Dr. Glowacki made it abundantly clear in his notes regarding
claimant's work restrictions that claimant was to be given no
work that would require him to use his left hand. Terry
testified that, based on claimant's work restrictions, he
instructed claimant's supervisors to provide claimant with only
light-duty work that would not require him to lift or climb
ladders. Terry further testified, however, that he was not
always present at the work site where claimant was working and
had to depend on his supervisors to carry out his instructions.
Claimant testified that, after his first day, the work
assigned to him by employer was beyond his restrictions.
According to claimant, the jobs he was given by employer
required him to use his left hand to lift and climb ladders that
were sixteen feet and longer in length. Claimant's testimony
was uncontroverted.
In addition, Dr. Glowacki reported that claimant informed
him that his employer was "still making him lift ladders and do
things that obviously require two hands," despite Dr. Glowacki's
note to employer saying claimant was to have "absolutely no use
of his [left] hand." Dr. Glowacki further noted that claimant
was "failing with [the] continued use of his hand at work given
the option of only two-handed type of work." Dr. Glowacki also
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noted in claimant's August 18, 2000 work status report that
claimant's injury was work related.
As the commission correctly found, the continuing
aggravation of claimant's original compensable injury was a
result employer "should have reasonably expected." It was the
predictable consequence of employer's giving claimant work
beyond his work restrictions. Thus, having knowingly given
claimant work that required him to exceed his work restrictions
and that could reasonably be anticipated to result in the
aggravation of claimant's compensable injury, employer may not
escape having to pay for claimant's compensation benefits for an
aggravation caused by such work simply by blaming claimant for
engaging in work beyond his restrictions. Employer must bear
the responsibility of having knowingly given claimant work that
required him to exceed his doctor's work restrictions.
Accordingly, we affirm the commission's decision and award.
Affirmed.
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